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Article 50: the final say

20 February 17

Parliament must approve the triggering of the process for the UK’s withdrawal from the European Union – but has the Supreme Court decision in Miller done much to affect the UK Government’s position?

by Alan Page

On 24 January 2017, the UK Supreme Court, by a majority of eight to three, decided that the UK Government could not trigger article 50 of the Lisbon Treaty, notifying the European Council of the UK’s intention to withdraw from the European Union, without first obtaining the approval of Parliament in the form of legislation (Miller and Dos Santos v Secretary of State for Exiting the European Union [2017] UKSC 5). The court also decided, unanimously rather than by a majority, that the Government was not legally obliged by the Sewel convention to consult the devolved legislatures or to obtain their agreement before triggering article 50.

On 1 February, eight days after the Supreme Court’s judgment, the European Union (Notification of Withdrawal) Bill received its second reading in the House of Commons. If the bill is enacted in accordance with the Government’s timetable, the Prime Minister will be authorised to notify the European Council of the UK’s intention by the end of March as originally planned. In this contribution, I explain why the Supreme Court decided that the UK Parliament’s legislative sanction was required before article 50 could be triggered, but that the Scottish Parliament’s consent was not, despite the Sewel convention having been put on a “statutory footing” by the Scotland Act 2016 following the 2014 independence referendum.

Triggering article 50

The main issue in the case involved two long established constitutional principles: first, that the conduct of foreign affairs, including the making and unmaking of treaties, is a matter for the Government in the exercise of its inherent or “prerogative” powers; and secondly, that the Government cannot in the exercise of its prerogative powers change the law of the land. The provisions of a treaty must therefore be incorporated by statute before the courts will have regard to them. In this way the fundamental constitutional principle that if the law is to be changed it can only be by or with the authority of Parliament is maintained.

It was common ground between the parties that the rights and obligations derived from EU law would be affected as a result of the UK leaving the EU. For the claimants, the effect on individual rights would be an inevitable consequence of triggering article 50: this because notification was treated as irrevocable for the purposes of the litigation, with the result that the EU Treaties would at some point cease to apply to the UK. Although the Government intended to repeal the European Communities Act 1972, which gives effect to EU law in the UK, by the “Great Repeal” Bill in the next parliamentary session, notification of the UK’s intention to withdraw would pre-empt Parliament’s decision on the bill. It would be tantamount to changing the law by ministerial action or decision. Statutory authorisation was therefore required before notice could be given.

The Government, for its part, accepted that some rights would be lost on withdrawal, but argued that their loss was provided for, and had therefore effectively been sanctioned, by Parliament in the European Communities Act, s 2(1) of which gives domestic legal effect to “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”. If the EU Treaties no longer applied to the UK, which would be the consequence of withdrawal, there would be no rights etc to which domestic legal effect had to be given.

The majority accepted the Government’s argument that the ambit of the rights, powers and so on incorporated into domestic law through s 2 of the 1972 Act varied with the UK’s obligations from time to time under the EU Treaties (para 76). There was, however, a “vital difference”, in their view, “between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through s 2 of the 1972 Act. The latter involves “a unilateral action… which effects a fundamental change in the constitutional arrangements of the United Kingdom” (para 78). It could therefore not be initiated by ministers in the exercise of their prerogative powers, but only with the approval of Parliament expressed in the form of legislation.

“We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone [sic]; it must be effected in the only way that the UK constitution recognises, namely by parliamentary legislation. This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law to the present issue” (para 82).

Conditional rights: the dissent

In his dissenting judgment, Lord Reed, with whom Lord Carnwath and Lord Hughes agreed, took issue with much of the reasoning of the majority. There was no basis in the language of the 1972 Act for drawing the distinction drawn by the majority between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes resulting from withdrawal by the UK from the European Union (para 187).

It was a basic principle of the constitution that the conduct of foreign relations, including the ratification of treaties, fell within the prerogative powers of the Crown. “That principle is so fundamental that it can only be overridden by express provision or necessary implication... No such express provision exists in the 1972 Act. Nor do its provisions override that principle as a matter of necessary implication” (para 194).

The only issue in dispute was whether the action by the Crown, as a result of which the Treaties would cease to apply to the UK, must be authorised by an Act of Parliament. “On that issue, s 2(1) is silent. Neither expressly nor by implication does it require such action to be authorised by Parliament” (para 197).

Further, “the argument that withdrawal from the EU would alter domestic law and destroy statutory rights, and therefore cannot be undertaken without a further Act of Parliament, has to be rejected… It has to be rejected because it ignores the conditional basis on which the 1972 Act gives effect to EU law. If Parliament grants rights on the basis, express or implied, that they will expire in certain circumstances, then no further legislation is needed if those circumstances occur. If those circumstances comprise the UK’s withdrawal from a treaty, the rights are not revoked by the Crown’s exercise of prerogative powers: they are revoked by the operation of the Act of Parliament itself” (para 219).

The main issue accordingly turned on the court’s interpretation of the significance of the European Communities Act. Had Parliament in legislating for the legal consequences of membership, as the majority concluded, “endorsed and [given] effect to the United Kingdom’s membership of the EU in a way which was inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties” (para 77)? Or was it, as Lord Reed concluded, that “The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU” (para 177)? The latter may be thought to be the more compelling conclusion, but it did not command the support of a majority.

The Sewel convention

The Scottish Government was always going to face an uphill struggle in its efforts to persuade the Supreme Court that the Scottish Parliament had a right to be consulted before article 50 was triggered, much less that its agreement had to be secured. Its case rested on s 28(8) of the Scotland Act 1998, which put the Sewel convention on a “statutory footing” in implementation of the recommendations of the all-party Smith Commission, set up immediately after the 2014 independence referendum to recommend changes to the devolution settlement.

As inserted by s 2 of the Scotland Act 2016, s 28(8) provides, after the s 28(7) affirmation of the continuing power of the UK Parliament to make laws for Scotland, “But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” The Scottish Government argued that the requirement of Scottish parliamentary consent was no less a part of the UK’s constitutional arrangements that had to be observed before article 50 could be triggered than the requirement of UK statutory authorisation.

The Supreme Court unanimously rejected this argument. In the first place, it pointed out, the Scotland Act reserved foreign affairs, including relations with the European Union. The Scottish Parliament accordingly, in common with the other devolved legislatures, did not have “a parallel legislative competence” in relation to withdrawal from the EU (para 130). As regards the Sewel convention, it dismissed the Scottish Government’s argument, agreeing with the Advocate General that statutory recognition had not altered the convention’s status, which remained that of a political rather than a legal rule, i.e. a rule which is not justiciable in the courts.

“As the Advocate General submitted, by such provisions, the UK Parliament is not seeking to convert the Sewel convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention, and is effectively declaring that it is a permanent feature of the relevant devolution settlement. That follows from the nature of the content, and is acknowledged by the words (‘it is recognised’ and ‘will not normally’), of the relevant subsection. We would have expected [the] UK Parliament to have used other words if it were seeking to convert a convention into a legal rule justiciable by the courts” (para 148).

While the convention had an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures, the policing of its scope and the manner of its operation did not lie within the constitutional remit of the judiciary, which is “to protect the rule of law” (para 151).

A question deferred

Some comment has suggested that the Sewel convention has been devalued as a result of the Supreme Court’s judgment. This is to misunderstand the significance of the convention, which remains no less politically binding than before. The possibility of going to court has been removed, which Governments are not in the habit of doing save in exceptional circumstances such as those of Brexit, but the leverage which the convention gives the Scottish Government through the Scottish Parliament remains essentially intact.

The question of the Scottish Parliament’s consent to the consequences of EU withdrawal in all their many guises has thus been only delayed, not settled, by the Supreme Court’s judgment. The terms of the “Great Repeal” Bill, which will repeal the European Communities Act, have yet to be seen, but the Secretary of State for Scotland has said that it will in all likelihood require the Scottish Parliament’s consent. Leaving aside the possibility if not the probability of a second independence referendum, the scene is thus set for no doubt lengthy, complex and difficult negotiations between the UK and Scottish Governments over the consequences of EU withdrawal for the devolution settlement – the third such set of negotiations this decade. Whether a deal can be struck to which the Scottish Parliament’s consent can be secured remains to be seen.

Pure legal formalism?

The Supreme Court’s decision on the need for the devolved legislatures’ consent is undeniably important. What, however, of its decision on the main issue? When set against the scale of the legal challenges posed by Brexit, one may ask what exactly has been achieved by a decision that does no more than require the Government to obtain statutory authorisation before triggering article 50.

As Lord Carnwath said, “bare statutory authorisation” for the service of the notice “will do nothing to resolve the many practical issues which will need to be addressed over the coming period, nor to protect the rights of those directly affected. Those problems, and the need for Parliament to address them, will remain precisely the same with or without statutory authorisation for the article 50 notice. If that is what the law requires, so be it. But some may regard it as an exercise in pure legal formalism”.

Alan Page is Professor of Public Law in the University of Dundee

Unpicking the article 50 bill

For a discussion of the bill authorising the article 50 notice, see the article by Ian Campbell, an online exclusive with this issue.